The Legal Services Bill - Essay Example

The Legal Services Bill 2006 Commentary on the Legal Services Bill 2006 Prepared for The Legal services Bill - Introduction In keeping with the global changes and competitive structure of all trades and professions, I was found necessary that the legal profession be allowed more freedom in its operations amd made more accountable to a national body. The regulatory boides namelt the bar councils had to be governed from an apex. Furthermore consumer activism and consumer redressel needs which were inadequate in the legal field had to be addressed. It was taken up in a number of countries, UK, USA, India and democtratic nations. However, in most countries the legal reforms have not yet touched this aspect. English Reforms In Great Britain, as far back as July 2003, Sir David Clementi was appointed to carry out an independent review of the regulatory framework for legal services in England and Wales. In December 2004, Sir David published a Report following his Review. The report was analysed by a number of luminaries, including Rob Baldwin, Julia Black, Martin Cave, Richard Brealey, Julian R Franks, Paul A. Grout, James Dow and Carlos Lapuerto, Jordi Blanes Vidal, Ian Jewitt, Clare Leaver and Stephen Davies.1 The bill was introduced by Lord Falconer of Thornton,2 incorporating many of their recommendations. The bill addressed the following major concerns. a) The control of and supervision of Legal Practitioners, representatives & Companies. b) The provision of a legal consumer forum for consumers, and the administration of the body to be constituted, its powers and regulations. The Bill In A Nutshell The final draft bill, thus included these important objectives: Establishment of a Legal Services Board and in respect of its functions; Regulate the Individual Legal Practitioners. Establish an Office for Legal Complaints, deal with them (legal complaints) Special cell for Immigrants, immigration advice & services. Free legal advice and representation. Apply the Legal Profession and Legal Aid (Scotland) Act 2006, enable the Scottish legal services ombudsman.3 These, to make it brief, are the objectives of the bill. After due consideration and a number of debates on 6 April 2007 Lord Falconer of Thornton presented it in the parliament.4 Final amendments as announced were on 17th April 2007. OBJECTIVES CONSIDERED The bill as it will be observed, addresses three basic objectives, the primary being controlling of the legal profession. In the draft, and in the ultimate submissions of the bill, great care has been taken to ensure that the legal profession continues to be fearless and is allowed to retain its independence, and the faith of the customer, enshrined in the principle of 'Privilege' is also kept. In the draft, we see the emphasis on this.5 Therefore the CONTROLS envisaged is more to regulate the functioning and not to hamper with the independence of the legal practitioner. It addresses the concerns of unbridled misuse of legal protection and extraordinary abilities and privileges accorded to them. Giving the genuine practitioner a right and privilege to practice, removing the scrounge of unauthorized practitioners, and regulation of commercial companies, which can now be formed in the practice of law, is the chief laudable objective, with a separate body, which will oversee the functioning of all bar councils and associations has now sought to bring some order and create a more efficient legal system. Important Factor The most important impact will be on removing 'Village Barristers'. Those quacks who profess knowledge of law, and act as touts between the lawyer and the client. This bill gives definitions of a legal practitioner, and does away with those not qualified to practice law altogether from the judicial field. It is ironic that Great Britain had to take this long to bring in this legislation to stream line the legal profession, while elsewhere as in India for example, the Advocates Act did away with practitioners other than trained lawyers in one stroke, as far back as in 1960. The removal of such elements, who tout litigants is an important step in reducing litigations, and in keeping the practice pure. Consumer Rights One of the most important and pertinent area which remains misty to this day is the rights of the litigant with regards to the services he is expected to receive from his lawyers and legal representatives. Hitherto, the litigant was at the mercy of the practitioner, and recourse and remedy against grievance in the function of the legal professional consisted of filing suits or appealing for misconduct to the concerned Bar-Council. These methods left the litigant poor, and faced with a body consisting of the fellows of the defendant practitioner, gave no iota of chance to the layman in getting proper relief. This bill addresses this issue by Establishing an Office for Legal Complaints, to deal with the disputes that arise between legal practitioners and their clients. This is a great step to ensuring that the legal fraternity functions with due regard to their client's interests, and that they treat all litigants with honesty and provide proper service. This move is laudable and in future it will bring about great changes in the way litigation is carried on in Great Britain. Special Law Will not remove Independence There ought to be checks and balances, and this law appears to have incorporated the necessary checks and balance by introducing an arbitrator between the client and the lawyer through this statutory body. The contention that such regulation removes the freedom of the lawyer is ill founded. While the statute regulates, or provides for a panel to regulate the affairs between the counsel and client, It is still open to the counsel to advise the client in the most advantageous and befitting manner and conduct the litigation without fear or favour. What is lost is the short cuts and dubious litigation, perjury and other fabrications which will now become impossible. This is so because the client and counsel will become accountable. Where an allegation of misdemeanour like perjury occurs, and it was on the instance of the counsel, both will become accountable. The counsel will now be burdened with proof of actual instructions which he need to keep proving his credibility. Thus the profession will be cleansed off all the mire that has collected around it in shady activities. We hope that the legislation will be taken in this spirit by the legal fraternity. It is observed that transparency in dealings between client and lawyer is the first step to a better solution. Special cell for Immigrants. This is a subject by itself, considering that Britain is the first choice of immigrants, both from Europe and Asia. There have been concerns over illegal immigration, especially from Asia, and some of these immigration processes are controlled by solicitors and attorneys. Immigration of qualified attorneys from the Common Wealth, all require very detailed study and handling, especially in the wake of many aliens being duped or brought into illegal activities. This bill thus aims at dealing with this issue through a separate legal authority. In the context of the changing global practices, and if we regard the threats posed to the country in terms of immigration either by improper means or for shady reasons, the step will ensure that legal formalities, and proper method is ensured in immigration. It will also give an opportunity to foreigners qualified in English law, to immigrate and set up practice in Britain. India, and other countries which have qualified personnel can further profit by the Bar-At-Law examinations being made open now, and the inducting of legal personnel from the Asiatic nations will help better service to immigrants from those nations. Emigration is a very sensitive issue. Many hopefuls try to enter Britain everyday. Unfortunately they fall pray to dubious persons, both at the home country and here who offer emigration services for a huge fee. The emigrant pays the fee and finds himself in an English jail. Most of these companies and persons flaunt that they are providing legal services through their websites. Some also incorporate the names of legal personalities. One such site, for the purpose of illustration is malathibenjamin.com6. I am giving this as an example, and does not cast any aspersion on the concerned firm. There are thousands of them, and this act will help regulate the practitioners and provide for an authority that will oversee the immigration process into Britain. Free legal advice and representation. Many countries like India took up the cause of the Indigent litigant a long time ago. Way back in 1986. The bill brings the present to the poor litigant who cannot pay his way through the fees, stamps and charges, an opportunity of being heard. It is a laudable proposition, and it is submitted that there ought to be provisions to recognize the merit of free legal service. Tax rebates may be provided to the counsels who take up fixed number of briefs a year based on free service. Evaluation While the bill has rightly aimed at those shortcomings of the existing legal system, and sought to provide redress, to the immigrant, litigant, and layman and creating a system that is controlled in a more transparent manner, care should be taken to maintain the independence of the legal practitioner, and provide him with further safeguards. It is submitted that some consideration may also have been shown to the subject of Arbitration, which involves complications of a global nature. Regulations regarding arbitration and its impact could have also been brought under the ambit of the Legal services Board. Dissent and misgivings to the bill have been expressed. John Hemming's Web Log John's Reference Website says that it will bring in the "Tyranny of the Consumer" . According to him : " The UK constitution and many others operate on the basis of a separation of powers. It is important that the process of interpreting law is independent of government. That is key for avoiding a corrupt tyrannical society. Ideally justice needs to be done and be seen to be done"7 However, reforms of this nature are necessary, and in keeping with the changes made in other countries, and changing legal perceptions and needs, we may conclude that the bill, when ratified by the House of Lords, will bring sweeping changes in the English judicial system. For one thing, though the legal fraternity will be made accountable to clients, similar experiments in other countries have provided correct results. It is possible to sue a US. Lawyer, and in India, the Consumer protection act offers such facility. The proposal for a body that controls the affairs between legal practitioners and their clients will be a better model, in as much as it will provide greater service and transparency at all levels. No one can have adverse opinion on the right of indigent litigants, and emigrants. Those who feel otherwise may be overlooking the lacunae in the system which the bill seeks to overcome. We must also consider that while British common law remains unmodified, time have changed, and we have to keep pace with the world. The global economy requires that laws and judicial systems are kept at par with the international law practice. Every nation has brought in these amendments and curbs long ago. Some of the erstwhile colonies seem to have taken these steps decades ago, and we welcome this change which one single bill has brought to the legal fraternity, consumer, and the immigrant. It will go a long way in creating a more speedy and transparent legal system, and its faults and shortcomings that will surface, once the bill becomes law, can be observed and corrected in future. . Bibliography 1 History: Reports in pdf at http://www.dca.gov.uk/legalsys/lsreform.htm#clem 2 http://www.publications.parliament.uk/pa/ld200607/ldbills/050/2007050a.pdf 3 http://www.dca.gov.uk/ 4 http://www.publications.parliament.uk/pa/ld200607/ldbills/009/07009.1-7.html (Bill - House of lords) 4.a http://www.publications.parliament.uk/pa/pabills/200607/legal_services.htm, 4.b http://www.dca.gov.uk/pubs/statements/2006/st060524.htm 5 http://www.dca.gov.uk/legist/legalservices.htm#b (All pertaining to the contents of the bill) 6 www.olscc.gov.uk/pdfs/pn060524.pdf (Bill details) 7 http://www.publications.parliament.uk/pa/pabills/200607/legal_services.htm(Process and stage) 8 www.pm.gov.uk/files/pdf/LEGAL%20SERVICES%20BILL.pdf Final Bill in PDF 9 About the bill: http://www.publications.parliament.uk/pa/pabills/200607/legal_services.htm Side note 10. http://johnhemming.blogspot.com/2006_06_01_archive.html. (opinions) Read More